Supreme Court holds off on major affirmative action decision

Avoiding any major ruling on the hotbutton issue of affirmative action in school admissions, the Supreme Court on Monday sent the case Fisher v. University of Texas at Austin back to the Fifth Circuit Court of Appeals. The narrow ruling essentially tees up the issue for the court to reconsider next year, when it will review another affirmative action case.

In a seven to one opinion, the court argued the lower court used the wrong standards to evaluate the Texas college's admissions policies. Justice Anthony Kennedy wrote for the majority that the Fifth Circuit should not have given UT Austin as much deference on the matter of whether its limited approach to racial considerations met the standard set by the Supreme Court in 2003. That year, in Grutter v. Bollinger, the court rejected the use of racial quotas but said that schools could consider race as part of a "holistic" review of a student's application.

That precedent, Kennedy wrote, "does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice."

Justice Ruth Bader Ginsburg dissented, writing that she would affirm the Fifth Circuit's ruling that upheld the Texas program. "The University's admissions policy flexibly considers race only as a 'factor of a factor of a factor of a factor' in the calculus," Ginsburg wrote. Justice Elena Kagan, meanwhile, recused herself from the case.

Two conservatives, Justice Clarence Thomas and Justice Antonin Scalia, wrote opinions concurring with the majority. Scalia noted that the Fisher team did not ask the Supreme Court to overturn the 2003 Grutter precedent, so he was therefore joining the majority. Thomas similarly wrote, "I write separately to explain that I would overrule Grutter v. Bollinger, and hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause."

Fisher v. University of Texas at Austin was brought to the court by Abigail Fisher, a white woman who applied to UT Austin as a high school senior in 2008. She filed suit against the school after she was rejected, arguing the university's consideration of race didn't meet standards previously set by the Supreme Court.

While the University of Texas defended its consideration of race, most students are accepted into UT Austin through the "Top 10 percent" law -- a program that doesn't consider race. The "Top 10" program grants automatic admission to the top students in every Texas high school. Fisher did not qualify for the program. In 2008, just 216 accepted students accepted outside of the "Top 10" program were black or Hispanic.

Both those opposed and in support of affirmative action in college admissions called Monday's decision a victory.

Fisher said in a statement, "I am grateful to the justices for moving the nation closer to the day when a student's race isn't used at all in college admissions."

Edward Blum of the Project on Fair Representation, a not-for-profit legal defense foundation that provided counsel to Fisher, said in a statement that Monday's ruling issued a "clear directive" to the Fifth Circuit.

"The Supreme Court has established exceptionally high hurdles for the Univ. of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies," he said. "It is unlikely that most institutions will be able to overcome these hurdles. This opinion will compel the Fifth Circuit to strike down UT's current use of race and ethnicity."

Sherrilyn Ifill of the NAACP Legal Defense and Education Fund argued to reporters Monday that the decision doesn't impose sharper standards on universities but rather on the courts obligated to review university plans. "Of course, the collateral consequence of that is that universities will have to make a sharper presentation to the courts," she said.

Ifill and other proponents of affirmative action stressed that the court was willing to follow the precedent set in Grutter. "What is apparent is that the court exercised restraint today, which I think is quite important," Ifill said.

By deciding to adhere to the Grutter precedent, NAACP president Ben Jealous said, the court "chose to affirm that there is a place for race in university admissions."

Fisher v. University of Texas at Austin, argued before the court in October, was considered a major opportunity for the court to rule on affirmative action. While Monday's ruling doesn't set any new precedents, the court will take up another affirmative action case as soon as next year.

The Supreme Court in its next term will consider whether the state of Michigan violated the Equal Protection Clause by amending its state Constitution to prohibit affirmative action. The case, referred to as Schuette v. Coalition to Defend Affirmative Action, reviews a 2006 Michigan ballot initiative that bans the consideration of race or sex in public education, government contracting and public employment.

The Sixth Circuit Court of Appeals ruled that the Michigan initiative -- because it came in the form of a constitutional amendment -- "reordered the political process" in a way that put special burdens on racial minorities.

"Rather than undoing an act of popularly elected officials by simply repealing the policies they created, Michigan voters repealed the admissions policies that university officials created and took the additional step of permanently removing the officials' power to reinstate them," the appeals court wrote. "Had those favoring elimination of all race-conscious admissions policies successfully lobbied the universities' admissions units, just as racial minorities did to have these policies adopted in the first place, there would be no equal protection concern."